Dismantling America’s Destructive ‘Fourth Branch’ of Government

David S. D’Amato is an attorney and adjunct law professor whose writing has appeared at the Institute of Economic Affairs, the Future of Freedom Foundation, the Centre for Policy Studies, the Ludwig von Mises Institute, Liberty Fund’s Online Library of Law and Liberty, the Foundation for Economic Education, and in major newspapers around the world.

D’Amato is on the Board of Policy Advisors for the Heartland Institute and he is the Benjamin Tucker Research Fellow at the Molinari Institute’s Center for a Stateless Society. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School.

Every American learns in grade school of the three-part structure of the U.S. government: the legislative, executive, and judicial branches. In The Federalist Papers, No. 47, James Madison, called by many the “father of the Constitution,” remarked the accumulation of these powers in the hands of one party “may justly be pronounced the very definition of tyranny.”

The Constitution — at least, in theory — forbids any one of the three branches from delegating its powers or duties to another branch. But the Constitution has effectively been amended, albeit quite outside of the prescribed process. Today, a fourth branch of government, nowhere authorized in the Constitution, has, as legal scholar Philip Hamburger observes, “transformed American government and society” and “become the government’s primary mode of controlling Americans.”

How did such an abysmal change to the constitutional edifice come to pass so quietly? The story begins more than a century ago, when new assumptions about the role and configuration of government gradually superseded the classical liberal ideas of the founding generation. A look at the political thought of Woodrow Wilson provides a useful illustration of this new way of thinking about the state, now known as progressivism. Wilson believed the “science of administration,” which he saw as still in its nonage, must be adapted to accommodate widening “new conceptions of state duty.” To Wilson, “the weightier debates of constitutional principle” were passé, increasingly irrelevant to the more-pressing questions of running a large and complex government apparatus. The idea of limited government itself belonged to a simpler time.

Wilson’s answer to the admittedly “poisonous atmosphere” of corruption and confusion in government at all levels was an appeal to the “impartial scientific method.” Here, he was a product of his time. Successive breakthroughs in the natural sciences had convinced Wilson’s generation virtually everything, government included, could be understood and restructured in terms of fixed scientific laws; government and human nature were believed to be perfectible through science.

Wilson and the progressives accordingly believed bureaucrats were, through an august commitment to the common good, lifted above ordinary greed and self-interest. The federal bureaucracy would be their temple, a thing apart from partisan melees and their raucous debates. It was to be the cloistered, rarified world of trained subject-matter experts, objective and scientific, unmoved by selfish interests and unsoiled by politics. In principle, the modern administrative state, this new fourth branch of government, represents a forthright repudiation of the liberal Enlightenment principles upon which the constitutional order was premised. And the administrative state’s early exponents readily acknowledged as much. Government, they argued, should not be limited; it should be empowered, maximizing resources and latitude for credentialed experts. Progressivism, once it had subdued the liberalism of old, quietly adopted its name, leading to a lexicographical confusion that still confounds.

A consideration of the broad discretionary power of the modern administrative state would not be complete without discussing the Supreme Court’s decision in Chevron v. NRDC and the destructive legal doctrine to which it gave birth. The Chevron doctrine has its origin in a legal challenge to the Environmental Protection Agency’s chosen means of enforcing the Clean Air Act. The petitioners argued a new regulation enacted in the first year of the Reagan administration was inconsistent with the statute as enacted by Congress. The plaintiffs named as defendant in the suit Anne Gorsuch, then head of the EPA and mother of current Supreme Court nominee Neil Gorsuch (who has been critical of Chevron).

Specifically, the lawsuit set forth a challenge to the agency’s implementation of the so-called “bubble concept,” whereby several distinct sources of pollution at a single plant could be grouped together — treated as under a single “bubble — for the purposes of compliance. The laxity permitted by this bubble rule, the petitioners argued, was at odds with the Clean Air Act, an abuse of the agency’s discretion.

The D.C. Circuit, in an opinion authored by Ruth Bader-Ginsburg, held the EPA’s new rule was impermissible. As an energy company, Chevron had standing to appeal, and the Supreme Court heard arguments in February of 1984. Reversing the D.C. Circuit, the Supreme Court concocted a new test for determining whether a federal agency’s rulemaking ought to stand. Confronted with a statute that is “silent or ambiguous with respect to the specific question,” the proper inquiry is whether the resolution provided by the agency regulation represents a “permissible construction” of the law’s language. Courts must defer to anyinterpretation that is reasonable — which is to say, that is not “arbitrary, capricious, or manifestly contrary” to the law — an incredibly low bar for the government. Calling up the Wilsonian ideal of a bureaucratic state run by qualified, disinterested professionals, the Court noted, “Judges are not experts in the field.”

As a matter of practice, the Chevron doctrine completely precludes judicial review of an administrative agency rule. The rule thus perverts the constitutional order by allowing the federal government to interpret the meaning of the law for itself, without any material check on its interpretations and, therefore, its power. Such total deference fundamentally undermines the vision of the federal government reflected in the Constitution.

Even if one agrees with an agency’s interpretation in a given case, this repositioning of authority is a dangerous subversion of the rule of law (the irony, of course, is that in Chevron, deference to the fourth branch happened to result inless bureaucratic meddling). Left free to police itself, the federal bureaucracy has naturally arrogated to itself more power and discretion, its regulatory reach stretching into almost every area of life. It has acted in accordance with its nature. The administrative state is at base the embodiment of ruling-class condescension, contemptuous of its benighted wards and their efforts at self-organization.

Ultimately, the Chevron case is much more than a mere curiosity of administrative law; it points to a deeper question about what kind of society and political culture we want to cultivate. In one direction is a country in which a thriving civil society means problems are solved at local levels, through the efforts of free individuals and their voluntary associations. In the other direction, that of the sprawling, nearly omnipotent, administrative state—an undemocratic, illiberal society, suffocated under the rules of faraway bureaucrats accountable to no one.